Religious Freedom Still in the Dock

Fourth Quarter 2003

By James W. Skillen

The Center for Public justice has joined the Christian Legal Society in submitting an amicus curiae (friend of the court) brief to the U.S. Supreme Court. The court's new term that opened at the beginning of October will include a judgment in the case of Locke v. Davey.

The case is not complicated. Joshua Davey, a resident of the state of Washington, was eligible for a Promise Scholarship to attend college on the basis of his academic record and his family's modest income. However, he was declared ineligible for the scholarship because he decided to major in theology as well as business administration at Northwest College. The reason the state disqualified him for the scholarship was because his theology major would be taught from a devotional perspective "designed to induce religious faith." If his theology major were taught from a secular or "purely academic perspective," then he could have kept his scholarship, the state argued.

The Ninth Circuit Court of Appeals judged that the state's disqualification of Davey was unconstitutional and the case has now been appealed to the U.S. Supreme Court. The brief submitted by the Christian Legal Society and the Center argues that the judgment of the appeals court should be affirmed. Here are edited excerpts from the brief:

Free Exercise Requires Nondiscrimination

The "fundamental" and "minimum" requirement of the Free Exercise Clause [of the First Amendment] is that a law may not single out religiously motivated activity for discriminatory treatment. There is no question that the Promise Scholarship is a generally available benefit, and that the exclusion of theology majors imposes a unique disability on them. Scholarships are available to students attending any of the host of accredited public and private colleges, taking any of the host of majors offered at those colleges. Out of this wide range of studies that scholarship recipients may choose, the state excludes only theology taught from a religious perspective. This singling out of religion from such a broad-based entitlement violates the nondiscrimination principle of earlier court decisions.

The state does not bar Promise Scholarship students from all religiously oriented courses. Davey could have received a scholarship while majoring in business or another non-theology major, even if his courses in that major included a good deal of religious teaching. But that fact does not help the state's case. Under the state's policy, a scholarship student can pursue religious instruction unless he cares enough to make that instruction the focus of his studies by majoring in theology.

Under the state's policy, Promise Scholarship recipients can pursue the University of Washington's major in religion—an example of the secular study of religion—and analyze New Testament books from the standpoint of "[m]odern scholarly methods of research and analysis." But they cannot major in religion elsewhere and analyze New Testament books from the standpoint that they are divinely inspired. The state's brief perfectly sums up the viewpoint discrimination here: Davey loses his scholarship because the courses in his major "teach the Bible as truth, whereas a purely academic understanding would not necessarily subscribe to the Bible as ultimate truth." It could scarcely be clearer that the state discriminates between different perspectives on the same subject matter.

Substantive Neutrality

The ultimate goal of the Constitution's provisions on religion is religious liberty for all—for believer and nonbeliever, for Christian and Jew, for Protestant and Catholic, for Western traditions and Eastern, for large faiths and small.... The fundamental principle to achieve that goal is for the government to maintain "substantive neutrality" toward religion. Neutrality requires that the government not express religious views itself or take a position on religious matters. But restrictions on government's own religious speech do not authorize government to do what it has done here: discriminate against the voluntary religious activity and expression of private individuals. Plainly, the instruction at private colleges where Promise Scholarships may be used is private speech and activity, not government speech.

In short, the way for the state to keep out of private individuals' choices about religion is to refrain from religious statements in its own speech, but to accord religious statements by private speakers the same treatment that secular statements receive.

Respecting the choice of students like Davey to use their scholarships for theology study does not involve the state in any religious questions. The state simply offers the scholarship to students who qualify because of academic achievement and family income, without regard to whether the student chooses a religious use. It is the exclusion of students like Davey that puts the state in the improper position of drawing discretionary and religiously significant lines. The state must decide, for example, which theology degrees are taught from a secular, "academic" perspective and which are taught in a way "designed to induce religious faith." This kind of state involvement and surveillance is precisely what the Court has in the past rejected as an excessive entanglement between church and state.

Additional Burdens

Notwithstanding the effects on religious choice from excluding students like Davey, the state argues that it is free to do so because its "decision not to subsidize religious instruction ... does not infringe Davey's right to seek a theology degree." In particular, the state claims that withdrawing the scholarship did not penalize Davey for exercising his right to study theology, because he could still study theology at another college using his own money. This argument is mistaken for two reasons, one legal, one factual.

Legally, the argument is mistaken because the disqualification of Davey places "undue burdens" on his religious choice, and that is unconstitutional. Washington's exclusion plainly discourages students from majoring in theology and [thereby] involves the state unjustifiably in religious decisions, as we've already argued.

In addition, because the law allows scholarships for those taking a religion major taught from a secular perspective, it may induce some students committed to a religion major to choose a college whose approach to religious studies is more secular and less devotional. At the margin, it might induce some colleges to tip their religion courses from the devotional toward the secular in order that their religion majors may receive Promise Scholarships. These distortions of private choice violate the First Amendment.

The argument is also factually mistaken. The state's disqualification of Davey is not merely a refusal to fund religious instruction. It goes further and imposes an independent penalty on his religious choice by denying him scholarship aid for secular courses—aid to which he would otherwise be entitled—because he chooses to take them as part of a theology major taught from a religious perspective. Davey took numerous courses for which he would have received scholarship support had he not declared theology as a major. He proposed to major in business administration and theology, and therefore to take courses not only in religion, but "in a multitude of disciplines: humanities, science, mathematics, social science, business, finance, [and] computer applications." He lost his funding for those non-theology courses simply because he also chose to major in theology at Northwest.

The state's answer is that a student such as Davey could use the Promise Scholarship for the non-theology major at Northwest, and then "simultaneously use his own money to pursue a theology degree in a separate program at a second school." This is obviously no answer whatsoever. The state proposes that the student pay close to two full-time tuitions simultaneously and bear the serious inconvenience of attending two full-time programs at potentially distant campuses. This represents a severe practical burden.